Arctic Oil/Gas Aff Inherency
Download 2.43 Mb.
|
- Navigate this page:
- B) Lack of 9 th Circuit action locks in decades of litigation uncertainty
- C) Lawsuits crush production---fiat can’t solve
- CP will be struck down
- Massive opposition to new terminals---won’t get financed and can’t export till 2018
- Terminal construction costs and delay
- Policy must be conducted at top levels to solve leadership
- A2: Arctic Wide CP/Multilat CP
- Exemptions fail---bureaucracy, inefficiencies and uncertainty deters investment
- AT Consult Arctic Council
AT: QPQ CPThe CP locks in the SQ:A) Congress has explicitly affirmed OCS title in seven statutesBloch 4 - Frank Knox Memorial Fellow in Law @ Harvard; Amherst, Oxford, Harvard American Indian Law Review, 2004 / 2005, 29 Am. Indian L. Rev. 1, COLONIZING THE LAST FRONTIER, David J. Bloch, Lexis. It has rightly been said that "[n]ative title involves concepts that are not traditionally the domain of the courts, such as collective rights, legal pluralism, and issues of competing sovereignty." n97 In this instance the Circuit either lost its juridical bearings or refused to take them: as Congress had never addressed aboriginal title in the OCS in any way other than to affirm its existence, and given that the United States had obviously extended its sovereignty over the area by its offshore regulatory schemes, the villages should have had the opportunity to prove their aboriginal title by long-term use and occupation. n98 This was not even an instance of legislative ambiguity requiring the canons of construction, for Congress explicitly sought to preserve tribal interests in the OCS. n99 Indeed, the Savings Clause of the Outer [*28] Continental Shelf Lands Act provided that the Act "shall [not] affect such rights, if any, as may have been acquired [in the OCS] under any law of the United States," n100 and the Submerged Lands Act included a similar reservation. n101 Given that aboriginal title has been recognized by the United States since Johnson, the villages' title was accordingly a right acquired in the OCS under American law. The Magnuson Act also protected pre-existing rights by its requirement that the Secretary of Commerce "prepare a fishery management plan" "consistent with . . . any other applicable law." n102 In Parravano v. Babbit, the Ninth Circuit held that Indian fishing rights fell within the meaning of "other applicable law" under the Magnuson Act. n103 In the Halibut Act, Congress stipulated that the Northern Pacific Fishery Management Council, in its allocation of fishing privileges among U.S. fishers, shall "be fair and equitable to all such fishermen, based upon the rights and obligations in existing Federal law . . . ." n104 Aboriginal rights are of course such "rights and obligations in existing Federal law." Finally, exclusive aboriginal rights in the OCS were also preserved in the Marine Mammal Protection Act of 1972, n105 the Endangered Species Act of 1973, n106 and the Convention Between United States and Other Governments Respecting Whaling. n107 Congress's intentions could hardly have been plainer. B) Lack of 9th Circuit action locks in decades of litigation & uncertaintyBloch ‘4 - Frank Knox Memorial Fellow in Law @ Harvard; Amherst, Oxford, Harvard American Indian Law Review, 2004 / 2005, 29 Am. Indian L. Rev. 1, COLONIZING THE LAST FRONTIER, David J. Bloch, Lexis. In a sparsely populated area are several villages living on the water's edge. The livelihood of their members depends as much today on the Gulf of Alaska as it has for the last 7000 years. In the twilight of the twentieth century, Eyak wrongly denied the villages' their opportunity to prove continued use and occupation of parts of the OCS. It did so contrary to pronouncements by Congress. It did so despite entrenched jurisprudence. It did so in denial of what "'[H]umanity demands, and a wise policy requires.'" n168 Allowing Eyak to stand will perpetuate an injustice against the villages as well as other Native Americans who rely on cardinal principles of federal Indian law for the certainty and stability that their proprietary rights demand. n169 FOOTNOTE 169 BEGINS… n169 This is especially true for Indian nations with substantial land claims taking decades to resolve. See, e.g., Cayuga Indian Nation of N.Y. v. Vill. of Union Springs, 317 F. Supp. 2d 128 (N.D.N.Y. 2004) (motion for summary judgment granted following 1981 filing of suit); Oneida Indian Nation of N.Y. v. County of Oneida, No. 70- CV-35, 2003 U.S. Dist. LEXIS 7505 (N.D.N.Y. Apr. 7, 2003) (latest phase of claim dating from 1895). FOOTNOTE 169 ENDS… Many years ago Chief Justice Marshall articulated a doctrine that remains good law. When the en banc panel reconvenes to evaluate the actual consistency of the villages' rights with federal paramountcy, it should finally overturn Eyak in affirmation of the rule that has governed every claim to aboriginal title since the Republic's founding.
One of the primary culprits behind this continued lag in Gulf production is obvious: the regulatory risk companies incur when attempting to explore and drill. As demonstrated by the ATP lawsuit, the glacial pace at which the Obama Administration considers permits is unnecessarily delaying drilling projects. Although federal law requires the Department of the Interior to accept permit applications and review them promptly in a given time frame,[7] the agency routinely takes longer than necessary with no repercussions. The time to obtain approval for an exploration and drilling plan increased significantly after BP’s Macondo well blowout—a delay that has made it extremely difficult for companies to plan for projects.[8] CP will be struck downGray 1894 – Supreme Court Justice citing Supreme Court Justice McKinley in Pollard SHIVELY v. BOWLBY. No. 787., SUPREME COURT OF THE UNITED STATES, 152 U.S. 1; 14 S. Ct. 548; 38 L. Ed. 331; 1894 U.S., JUSTICE GRAY, March 5, 1894, Decided In Pollard v. Hagan, (1844,) this court, upon full consideration, [*27] (overruling anything to the contrary in Pollard v. Kibbe, 14 Pet. 353; Mobile v. Eslava, 16 Pet. 234; Mobile v. Hallett, 16 Pet. 261; Mobile v. Emanuel, 1 How. 95; and Pollard v. Files, 2 How. 591,) adjudged that upon the admission of the State of Alabama into the Union, the title in the lands below high water [**558] mark of navigable waters passed to the State, and could not afterwards be granted away by the Congress of the United States. Mr. Justice McKinley, delivering the opinion of the court, (Mr. Justice Catron alone dissenting,) said: "We think a proper examination of this subject will show, that the United States never held any municipal sovereignty, jurisdiction or right of soil, in and to the territory of which Alabama or any of the new States were formed; except for temporary purposes, and to execute the trusts created by the acts of the Virginia and Georgia legislatures, and the deeds of cession executed by them to the United States, and the trust created by the treaty with the French Republic of the 30th of April, 1803, ceding Louisiana." "When the United States accepted the cession of the territory, they took upon themselves the trust to hold the municipal eminent domain for the new States, and to invest them with it to the same extent, in all respects, that it was held by the States ceding the territories." "When Alabama was admitted into the Union, on an equal footing with the original States, she succeeded to all the rights of sovereignty, jurisdiction and eminent domain, which Georgia possessed at the date of the cession, except so far as this right was diminished by the public lands remaining in the possession and under the control of the United States, for the temporary purposes provided for in the deed of cession and the legislative acts connected with it. Nothing remained to the United States, according to the terms of the agreement, but the public lands." 3 How. 221-223. "Alabama is therefore entitled to the sovereignty and jurisdiction over all the territory within her limits, subject to the common law, to the same extent that Georgia possessed it before she ceded it to the United States. To maintain any other doctrine is to deny that Alabama has been admitted into the Union on an equal footing with the [*28] original States, the Constitution, laws and compact to the contrary notwithstanding." "Then to Alabama belong the navigable waters, and soils under them, in controversy in this case, subject to the rights surrendered by the Constitution to [***342] the United States." 3 How. 228, 229. AT: Exports CPMassive opposition to new terminals---won’t get financed and can’t export till 2018Clifford Krauss, 1-4-2013, “Exports of American Natural Gas May Fall Short of High Hopes,” NYT, http://www.nytimes.com/2013/01/05/business/energy-environment/exports-of-us-gas-may-fall-short-of-high-hopes.html?pagewanted=all Resistance from environmental groups like the Sierra Club could help stop some export projects, especially outside the Gulf of Mexico region, which has long been comfortable with the oil and gas industry. And manufacturers like Dow Chemical are campaigning against unfettered exports to keep their costs down. Over all, these factors will make it challenging for export projects to raise enough financing. L.N.G. terminal developers note that more than 20 import terminals proposed a decade ago were never built because of local opposition or lack of government permits and financing. “Can all these projects get financed? That’s a good question,” said Marvin Odum, president of Shell Oil Company, which is looking at various possible L.N.G. terminal sites to invest in. “The outcome of this is not likely to be unlimited L.N.G. exports.” Charif Souki, Cheniere’s chief executive, predicted that by 2018, the country would manage to export only one billion to two billion cubic feet of gas a day, or roughly 2 percent of current domestic consumption. In 10 years, after two to four projects have received permits and have been built, he said he expected exports to grow to three billion to five billion cubic feet a day. The total global production of L.N.G. is about 40 billion cubic feet a day, and growing rapidly. Terminal construction costs and delayClifford Krauss, 1-4-2013, “Exports of American Natural Gas May Fall Short of High Hopes,” NYT, http://www.nytimes.com/2013/01/05/business/energy-environment/exports-of-us-gas-may-fall-short-of-high-hopes.html?pagewanted=all Now, the same companies that had such high hopes for imports are proposing to salvage those white elephants by spending billions more to convert them into terminals to export some of the nation’s extra gas to Asia and Europe, where gas is roughly triple the American price. Just like last time, some of the costly ventures could turn out to be poor investments. Countries around the world are importing drilling expertise and equipment in hopes of cracking open their own gas reserves through the same techniques of hydraulic fracturing and horizontal drilling that unleashed shale gas production in the United States. Demand for American gas — which would be shipped in a condensed form called liquefied natural gas, or L.N.G. — could easily taper off by the time the new export terminals really get going, some energy specialists say. “It will be easier to export the technology for extracting shale gas than exporting actual gas,” said Jay Hakes, former administrator of the Energy Department’s Energy Information Administration. “I know the pitch about our price differentials will justify the high costs of L.N.G. We will see. Gas by pipeline is a good deal. L.N.G.? Not so clear.” Even the terminal operators acknowledge that probably only a lucky few companies will export gas because it can cost $7 billion or more to build a terminal, and then only after a rigorous federal regulatory permitting process. The exploratory process to find a suitable site for a new terminal alone can take a year and cost $100 million, operators say, and financing can be secured only once long-term purchase agreements — 20 years or more — are reached with foreign buyers. “It’s a monumental effort to put a deal together like this, and you need well-heeled partners,” said Mark A. Snell, president of Sempra Energy, which is based in San Diego and is applying for permits to turn around a Hackberry, La., import terminal for export. “There are only a handful of people who can do this kind of thing.” A2: Agent CP’sPolicy must be conducted at top levels to solve leadershipEbinger et al ‘14 Charles K. Ebinger, John P. Banks and Alisa Schackmann, Brookings Institute, Offshore Oil and Gas Governance in the Arctic: A Leadership Role for the U.S., March 24, 2014, http://www.brookings.edu/research/reports/2014/03/offshore-oil-gas-governance-arctic The historic lack of focus on the importance of the Arctic is illustrated in another perspective ex pressed to us. This belief is that for far too long the government has treated the Arctic as something that scientific experts deal with in obscure loca tions, having little relevance to larger geopolitical issues. Institutionally, the U.S. Government has focused on the Arctic as a “technical” rather than a “strategic” issue, hindering the elevation of the region as a priority in the policy hierarchy. As a result, in this view, too much of Arctic policy is conducted at lower levels of the government rath er than at the highest levels of the Department of State or White House. This in turn constrains the organizational, human, and financial resources dedicated to the Arctic. Several participants in our research, including some former Arctic officials, were forceful in their contention, saying “We can no longer pretend that we can deal with the chal lenges of the Arctic and not budget the resources to meet them.” The overall result, according to a senior U.S. Government official based in Alaska, is that U.S. Arctic policy “right now is very broad and not real defined.”
Starting with a bilateral approach and returning to multilat later is vital to solve and solves any internal net benefitsEbinger et al ‘14 Charles K. Ebinger, John P. Banks and Alisa Schackmann, Brookings Institute, Offshore Oil and Gas Governance in the Arctic: A Leadership Role for the U.S., March 24, 2014, http://www.brookings.edu/research/reports/2014/03/offshore-oil-gas-governance-arctic There is an equally persuasive view that, with such a large area containing such different conditions (various levels of presence of ice, water depth, proximity to supporting infrastructure), adopt ing a “one-size-fits-all” approach does not make sense. In support of this argument, the example of the contrast between the ice-free waters off Norway (the North Sea and the Norwegian Sea) and the ice-laden Chukchi and Beaufort Seas off the coast of Alaska is often cited. One oil and gas company executive stated that many of the cur rent initiatives to develop standards focus on ice-covered regions that are very different from ice-free areas, and it is precisely in the latter where commercial drilling is occurring. Thus in the view of this company, imposing Arctic-wide stan dards actually would hamper current commercial drilling activities and arguments for having per formance-based standards implemented on a lo calized basis. Other oil and gas companies echoed this skepticism of the need for, or effectiveness of, Arctic-wide standards, and stipulated that dif fering conditions by region or even sub-regions support locally-tailored, performance-based standards that will provide greater flexibility and incentivize technology innovation.141 One keen observer of Arctic governance notes that bilateral and lower level exchanges across na tions—for example regulator to regulator—have been taking place for many years and have been very effective (see Text Box 4). This expert recog nizes that, “baseline problems differ from area to area,” making a “neighborhood” approach to ad dressing governance challenges “very attractive.” In this regard, the Barents 2020 process was cited often in our discussions as a feasible model, and many supported the idea of initiating bilateral ar rangements on key issues and then linking the re sults back into the Arctic Council’s deliberations. Another argument in favor of the “neighborhood” approach is averting much of the sovereignty chal lenge, including the difficulty of wrangling eight countries toward a consensus agreement. Because the issue revolves around energy resources, strong sovereign interests are at stake hindering the de velopment of an Arctic-wide governance regime or, at the least, suggesting that any regime would have to be purely voluntary. With the different in terests of the littoral states, non-littoral states, and the expanding list of observers, it will be hard to construct some form of Arctic-wide mechanism under an IMO-type scheme (the Polar Code). This contrasts with the existing civil liability re gime established globally for tankers and vessels (including in the Arctic), where sovereignty con cerns did not prevent the implementation of a regulatory framework. AT Bond ExemptionsExemptions fail---bureaucracy, inefficiencies and uncertainty deters investmentNEI 10 Nuclear Energy Institute, "NRC ANNUAL FEE ASSESSMENT FOR SMALL REACTORS", October, pbadupws.nrc.gov/docs/ML1103/ML110380260.pdf 10 CFR Part 171 does provide for exemptions to NRC annual fees; see Section 117.11. ¶ However, reliance on fee exemption requests on a case-by-case basis, while useful when used ¶ infrequently, imposes burdens on the applicant who prepares the exemption application and on ¶ the NRC staff who review the request. Seeking individual exemptions from annual fee ¶ requirements also is less efficient for routine or widespread industry use. Additionally, the ¶ regulations set a relatively high bar for obtaining an exemption, and the outcome is never ¶ guaranteed. In turn, this scenario introduces uncertainty as to the annual cost of operating the ¶ plant. Interestingly, SECY-10-0034 appears to agree with this assessment of the use of the ¶ exemption process, citing it as one reason the agency is considering a rulemaking. AT Export Terminals CPMassive opposition to new terminals---won’t get financed and can’t export till 2018Clifford Krauss, 1-4-2013, “Exports of American Natural Gas May Fall Short of High Hopes,” NYT, http://www.nytimes.com/2013/01/05/business/energy-environment/exports-of-us-gas-may-fall-short-of-high-hopes.html?pagewanted=all Resistance from environmental groups like the Sierra Club could help stop some export projects, especially outside the Gulf of Mexico region, which has long been comfortable with the oil and gas industry. And manufacturers like Dow Chemical are campaigning against unfettered exports to keep their costs down. Over all, these factors will make it challenging for export projects to raise enough financing. L.N.G. terminal developers note that more than 20 import terminals proposed a decade ago were never built because of local opposition or lack of government permits and financing. “Can all these projects get financed? That’s a good question,” said Marvin Odum, president of Shell Oil Company, which is looking at various possible L.N.G. terminal sites to invest in. “The outcome of this is not likely to be unlimited L.N.G. exports.” Charif Souki, Cheniere’s chief executive, predicted that by 2018, the country would manage to export only one billion to two billion cubic feet of gas a day, or roughly 2 percent of current domestic consumption. In 10 years, after two to four projects have received permits and have been built, he said he expected exports to grow to three billion to five billion cubic feet a day. The total global production of L.N.G. is about 40 billion cubic feet a day, and growing rapidly. Terminal construction costs and delayClifford Krauss, 1-4-2013, “Exports of American Natural Gas May Fall Short of High Hopes,” NYT, http://www.nytimes.com/2013/01/05/business/energy-environment/exports-of-us-gas-may-fall-short-of-high-hopes.html?pagewanted=all Now, the same companies that had such high hopes for imports are proposing to salvage those white elephants by spending billions more to convert them into terminals to export some of the nation’s extra gas to Asia and Europe, where gas is roughly triple the American price. Just like last time, some of the costly ventures could turn out to be poor investments. Countries around the world are importing drilling expertise and equipment in hopes of cracking open their own gas reserves through the same techniques of hydraulic fracturing and horizontal drilling that unleashed shale gas production in the United States. Demand for American gas — which would be shipped in a condensed form called liquefied natural gas, or L.N.G. — could easily taper off by the time the new export terminals really get going, some energy specialists say. “It will be easier to export the technology for extracting shale gas than exporting actual gas,” said Jay Hakes, former administrator of the Energy Department’s Energy Information Administration. “I know the pitch about our price differentials will justify the high costs of L.N.G. We will see. Gas by pipeline is a good deal. L.N.G.? Not so clear.” Even the terminal operators acknowledge that probably only a lucky few companies will export gas because it can cost $7 billion or more to build a terminal, and then only after a rigorous federal regulatory permitting process. The exploratory process to find a suitable site for a new terminal alone can take a year and cost $100 million, operators say, and financing can be secured only once long-term purchase agreements — 20 years or more — are reached with foreign buyers. “It’s a monumental effort to put a deal together like this, and you need well-heeled partners,” said Mark A. Snell, president of Sempra Energy, which is based in San Diego and is applying for permits to turn around a Hackberry, La., import terminal for export. “There are only a handful of people who can do this kind of thing.” AT Consult Arctic CouncilLegally binding consultation doesn’t solve and collapses effective OCS governance- delays, undermines regulations, totally unnecessaryEbinger et al ‘14 Charles K. Ebinger, John P. Banks and Alisa Schackmann, Brookings Institute, Offshore Oil and Gas Governance in the Arctic: A Leadership Role for the U.S., March 24, 2014, http://www.brookings.edu/research/reports/2014/03/offshore-oil-gas-governance-arctic The most effective governance strengthening ap- proach is to build on the existing regulatory frame- work. A new, Arctic-wide, legally binding instru- ment addressing offshore oil, gas, and accompanying institutional structures is not feasible in the near- term. First, it is a top-down approach that, since it in- volves so many sovereign and other interests, could be unwieldy and take many years to enact (similar to the experience with the International Maritime Or- ganization’s Polar Code). Second, such a high-level, consensus-driven process—with sovereign in- terests at stake and widely differing conditions throughout the Arctic—could result in weak, wa- tered-down regulations in a “regulatory race to the bottom.” Third, the prospect of developing a new legal architecture has been addressed already by the Ilulissat Declaration in which five Arctic states explicitly recognize the adequacy of the existing le- gal framework. Fourth, attempting to craft a new legal framework could overwhelm other more use- ful and effective efforts in the short-term.2
AT Reg Negthreats lead to delay – companies will exploitKerwin 83 Cornelius, Assistant Professor and Coordinator of Doctoral Programs, School of Government and Public Administration, The American University, 32 Am. U.L. Rev. 401 Even when formal procedures are used, both parties may pursue negotiation at every stage of processing and subsequently reviewing a case. When parties with adequate financial resources are threatened with implementation of a rule that involves substantial expenditure, they may [*408] find it cost effective to pursue review. A rational calculation of the possibilities of prevailing in the negotiations or of achieving a favorable negotiated settlement may justify the cost of an additional process. n21 In certain instances, parties seek review merely to postpone necessary expenditures or to delay implementation in anticipation of advantageous changes in policy. Arguably, therefore, the large investments of time, money, and expertise in formal rulemaking proceedings, as well as the potential for strained relations between the public and private sectors, do not produce the desired results. counterplan takes 3 years – no evidence proves reg-negs happen fasterCoglianese 97 Cary, Assistant Professor of Public Policy, Harvard University, John F. Kennedy School of Government, and Affiliated Scholar at Harvard Law School, TWENTY-EIGHTH ANNUAL ADMINISTATIVE LAW ISSUE: ARTICLE: ASSESSING CONSENSUS: THE PROMISE AND PERFORMANCE OF NEGOTIATED RULEMAKING The average time period for all 12 of the negotiated rules promulgated by the EPA is 2.8 years (1013 days). The four negotiated rules in the Kerwin and Furlong study therefore turn out to be rather atypical, taking roughly half as long on average as the other rules. n120 In contrast to the eleven-month time savings sug- [*1284] gested by Kerwin and Furlong, my analysis of all of EPA's negotiated rules suggests (at most) little more than three months savings compared with the rules issued in the period studied by Kerwin and Furlong, a difference which could well be accounted for by choices of measurement. n121 When the EPA's three pending negotiated rules are added, the time savings between the two procedures disappears altogether. n122 If we were to assume, for sake of estimation, that the EPA had promulgated all three pending rules at the end of December 1996, the average time for promulgating negotiated rules at EPA would increase to 3.1 years (1129 days), three weeks longer than the average reported by Kerwin and Furlong for all EPA rules. n123 The whole of the available evidence on the time span of EPA's negotiated rules markedly contrasts with the claims of considerable time savings attributed to negotiated rulemaking. Of course, any comparison of negotiated and conventional rules may have its limits because the time it takes to develop rules is surely affected by factors other than just the use or nonuse of formal negotiated procedures. n124 Even though the EPA has conducted the [*1285] most negotiated rulemakings of any agency, it still has only promulgated 12 rules (and has only three others pending). Yet as I discuss in Part III.A, it does not appear that these negotiated rules were prone at the outset to demand more of the EPA's time. n125 Moreover, the experience at EPA seems consistent with the impression of at least one other agency that has completed a number of rules through the negotiated rulemaking process. The Department of Education "has reported that it realized no significant time savings through the use of the process." n126 comparative evidence that the counterplan takes longer than the planCoglianese 1 Cary, Associate Professor of Public Policy, 9 N.Y.U. Envtl. L.J. 386 No matter what one concludes about the impact of negotiated rulemaking on the duration of the regulatory process, negotiated rulemaking still demands more time and effort on the part of the participants than does conventional rulemaking. n133 Even if the overall duration of negotiated rulemakings could be shown to be shorter, n134 the intensity of negotiated rulemakings still translates into additional time. As Harter himself acknowledges, "reg negs are intense activities: participating in one can be expensive and time consuming." n135 The Langbein and Kerwin study, which Harter considers "rigorous" and "careful," n136 shows that participants in negotiated rulemakings report spending nearly twice as much overall in organizational resources as did their counterparts in conventional rulemakings. n137 Strikingly, participants in negotiated rulemakings are three times more likely to complain that the process takes too much time and effort. n138 Whatever one makes of the impact of negotiation on the duration of rulemakings, there is no disputing that negotiated rulemaking is much more burdensome, in terms of the overall time and expense, than conventional rulemaking. n139
counterplan wastes time and resources – no risk of a turnCoglianese 97 Cary, Assistant Professor of Public Policy, Harvard University, John F. Kennedy School of Government, and Affiliated Scholar at Harvard Law School, TWENTY-EIGHTH ANNUAL ADMINISTATIVE LAW ISSUE: ARTICLE: ASSESSING CONSENSUS: THE PROMISE AND PERFORMANCE OF NEGOTIATED RULEMAKING Even though negotiated rulemaking at the EPA takes at least the same amount of chronological time as all rules studied by Kerwin and Furlong, by most accounts negotiated rulemaking demands much more concentrated amounts of time on the part of agency and non-agency participants. n127 To borrow a phrase from [*1286] Brian Polkinghorn, negotiated rulemaking is a "time compressor." n128 The negotiated rulemaking process contains all the elements of the conventional procedure, but "in reg-neg all of them are compressed into one preemptive, intense, time consuming negotiated interaction." n129 As an early EPA report on the agency's experience with negotiated rulemaking described, "EPA managers who have been the Agency's negotiators have devoted far more time to the negotiations in which they were involved than they ordinarily would spend on a single rulemaking effort." n130 Once the negotiations are completed, moreover, EPA staff still must spend the additional time associated with drafting regulatory language and responding to comments. Even those who are otherwise positively inclined toward regulatory negotiation acknowledge that the process demands a considerable amount of time and resources up-front. n131 When negotiated rulemaking compresses staff time in this way and still ends up taking at least as long as conventional rulemaking, it is impossible to conclude that it has successfully increased the speed of the regulatory process.
reg negs take longer, increase litigation, don’t help compliance and are likely to be modifiedGrimes ‘1 Shepherd R., J.D., "The Federal Regional Fishery Management Councils", Ocean and Coastal Law Journal, 6 Ocean & Coastal L.J. 187, lexis) Finally, what appears to be at the heart of his argument and underlying all of his other criticisms is that negotiated rulemaking prevents the agency from searching for what is truly in the public interest. 42 Underlying the APA and all other statutes delegating to agencies the authority to promulgate regulations is the notion that the agency will act in the best interest of the public as a whole, that is, the public interest. As he points out, the public interest may not always be clearly defined, if at all defined by the authorizing legislation. Regardless of whether it is precisely defined by the statute or left largely to agency discretion, Congress presumes that the agency will exercise its discretion and judgment to further the public interest. However, under a negotiated paradigm the goal is to achieve consensus among substantially affected parties who are likely to challenge the regulation, not promote any notion of the public interest. While it is true that other forms of modern rulemaking, such as notice and comment under the APA 44 and the National Environmental Policy Act's notice and comment procedure for environmental impact statements, 45 encourage enhanced participation by affected interests, they do not "[substitute the participation requirements] for the agency's responsibility to engage in reasoned decisionmaking in search of the public interest." [*194] Other commentators have examined negotiated rulemaking to see how well the process accomplishes its stated objectives of increasing the acceptability of rules, improving their substance, reducing likelihood that affected parties will resist rules or challenge them in court, and decreasing the amount of time required for promulgation. In particular, Professor Cary Coglianese performed "an empirical assessment of the impact of negotiated rulemaking on two of its principal goals: reducing overall rulemaking time and decreasing the number of judicial challenges to agency rules." He assembled and analyzed a dataset of "all negotiated rulemakings across all federal agencies" in order to assess how well negotiated rulemaking had achieved these goals. He concluded, to the surprise of many, that the process did not appear to be more capable of limiting the time required to promulgate regulations nor did the process avoid subsequent litigation of rules more than the regular notice and comment procedures required by the APA. 48 In fact, his results indicated that the Environmental Protection Agency (EPA), which utilized the procedure the most, had not realized any decrease in the time required for promulgation compared to its notice and comment rules, and had actually seen a higher rate of litigation of negotiated rules than other significant rules promulgated via notice and comment alone. In explanation of his findings, Professor Coglianese proposes that they may be due to the fact that for the negotiation process to be successful agencies must both secure and maintain consensus among parties involved which often proves very difficult. 50 Furthermore, the problem of consensus is additionally complicated by the multiple avenues of input and oversight in the regulatory process which increase the likelihood of changes in policy that alter the previous agreements or negotiations. reg-negs over energy efficiency fail – empirically encourage massive litigation and no consensusCoglianese 97 Cary, Assistant Professor of Public Policy, Harvard University, John F. Kennedy School of Government, and Affiliated Scholar at Harvard Law School, TWENTY-EIGHTH ANNUAL ADMINISTATIVE LAW ISSUE: ARTICLE: ASSESSING CONSENSUS: THE PROMISE AND PERFORMANCE OF NEGOTIATED RULEMAKING Yet in terms of avoiding litigation and eliminating conflict, the reformulated gasoline rule has turned out to be anything but successful. Within ten days of the publication of the final reformulated gasoline rule in the Federal Register, n152 both the American Petroleum Institute (API) and Texaco, Inc. filed petitions for judicial review, objecting to a provision in the final rule in which EPA would publish refiners' individual baseline standards instead of keeping this information confidential. n153 The American Automobile Manufacturers Association, the Association of International Automobile Manufacturers, and the Renewable Fuels Association intervened in these actions. n154 Following settlement discussions [*1291] and an out-of-court agreement reached with the petitioners, EPA proposed and promulgated a revision to the final rule under which EPA would release only part of the baseline information and would treat claims of business confidentiality in accordance with the agency's ordinary standards for protecting confidentiality. n155 Two other petroleum companies filed petitions raising objections to the reformulated gasoline rule. First, Fina Oil and Chemical Company objected to the individual baseline assigned to it in the rule. n156 In response, EPA agreed to adjust Fina's baseline in an administrative proceeding. n157 Second, Amerada Hess Corporation filed a judicial review petition objecting to the limits EPA placed on fuel parameters. n158 The final rule relied on both a "simple model" and a "complex model" to establish fuel parameters. Amerada Hess argued that the limits EPA placed under the "simple model" were inconsistent with those under the "complex model." n159 EPA acknowledged the error and issued a direct final rule amending portions of the reformulated gasoline rule to address these concerns. n160 Although both of these petroleum companies were in theory represented on the Clean Fuel Negotiated Rulemaking Committee by other petroleum companies and by API, one petitioner challenging the reformulated gasoline rule had no direct or indirect representative on the committee. The National Tank Truck Carriers (NTTC), a trade association representing about 200 common carrier fuel transporters, also filed a petition for review against EPA. n161 NTTC objected to provisions of the final reformulated gasoline rule that held common carrier tank truck companies liable [*1292] if fuel they transported for refiners did not meet the standards set out in the rule. n162 NTTC argued that the Clean Air Act granted EPA the authority to establish fuel standards but not the authority to regulate the transportation of reformulated fuels. n163 It also argued that the final rule denied common carriers' equal protection rights because it left private carriers and jobbers immune from liability without any rational basis. n164 Following the submittal of NTTC's brief but before EPA submitted its response, both parties reached a settlement agreement under which the EPA would revise the final reformulated gasoline rule. n165 The judicial proceedings have been held in abeyance pending the implementation of the settlement agreement. As of early 1997, these revisions were still undergoing the intra-agency review process before being proposed in the Federal Register. n166 The litigation challenging the reformulated gasoline rule was only one manifestation of the persistence of conflict, notwithstanding the agency's efforts to secure consensus. The reformulated gasoline rule also distinguished itself by prompting intense public criticism. While few EPA regulations receive attention in the popular media (even in elite papers such as the New York Times), n167 the reformulated gasoline rule splashed across the papers following the introduction of the new fuel. n168 Citizens reported headaches and dizziness associated with methyl tertiary butyl ether (MTBE), [*1293] the additive used to comply with the new standards. Others complained about higher fuel prices. To this day, press reports about the rule continue, though now they focus on cases of groundwater contamination with MTBE, a substance which is reported to be a possible carcinogen. n169 industry says no – 3 reasons why the process of the counterplan actually makes non-compliance more likelyCoglianese 97 Cary, Assistant Professor of Public Policy, Harvard University, John F. Kennedy School of Government, and Affiliated Scholar at Harvard Law School, TWENTY-EIGHTH ANNUAL ADMINISTATIVE LAW ISSUE: ARTICLE: ASSESSING CONSENSUS: THE PROMISE AND PERFORMANCE OF NEGOTIATED RULEMAKING In seeking consensus over the substance of regulations, negotiated rulemaking has long been considered a means of reducing conflict in the regulatory process. Yet formal negotiation can actually foster conflict. It adds three new sources of conflict stemming from decisions about membership on negotiated rulemaking committees; the consistency of final rules with negotiated agreements; and the potential for an overall heightened sensitivity to adverse aspects of rules. The first of these new sources of conflict stems from agency decisions about membership on negotiated rulemaking committees. As discussed above, the criteria for negotiated rulemaking have [*1323] led agencies to prefer rules that affect a limited range of parties. n297 Even with this tendency, agencies have sometimes still not been able to include all the organizations who feel they will be affected by a rule. Although the Negotiated Rulemaking Act insulates the agency from judicial review of its decisions about membership on negotiated rulemaking committees, n298 the exclusion of groups from membership on the committees adds a source of discontentment not otherwise present in notice-and-comment rulemaking. The decision to use a select committee whose representatives will develop a draft rule apparently attracts even closer scrutiny by organizations not represented at the negotiating table. Not surprisingly, the EPA has been criticized by parties who were not invited to participate on the agency's negotiation committees. In the asbestos rule, for example, the negotiations were temporarily disrupted while additional parties sought to participate in the negotiations. n299 In the disinfectant byproducts negotiation, the chlorine industry complained that it had been "unfairly excluded" from full participation in the negotiated rulemaking. n300 As I have already shown, the reformulated gasoline rule elicited a legal challenge from a tank truck trade association which was not represented on the negotiated rulemaking committee, n301 as well as trade challenges from two countries not included on the committee. n302 The negotiations over the Grand Canyon visibility rule and the wood furniture coatings rule also prompted litigation by groups not participating on the negotiation committee. n303 One organization alone is capable of upsetting a consensus built on unanimity or filing a petition for judicial review. Consequently, even a small number of excluded parties can pose a threat to the effectiveness of negotiated rulemaking. In Kerwin and Langbein's study, twelve percent of the respondents reported that they had to "press" the EPA to let them participate. n304 [*1324] Thirty-five percent of those same respondents reported that at least one affected interest was not represented at the negotiating table, a noteworthy finding considering that it is based on responses by those who were represented. n305 The likelihood that an agency excludes even one organization from a negotiated rulemaking committee poses an inherent threat to the effectiveness of a procedure that depends on consensus to foreclose litigation. In addition to conflict over committee membership, negotiated rulemaking adds conflict over the meaning of any consensus and the extent to which an agency's decision reflects that meaning. Sometimes conflicts arise simply between participants over what each thinks a negotiated agreement means. In the disinfectant byproducts rule, for example, a representative from the Natural Resources Defense Council reportedly criticized the American Water Works Association for subsequently urging EPA to set action levels rather than the more stringent maximum contaminant levels NRDC supported in the negotiation. n306 AWWA thought its position was consistent with the negotiations because it only agreed to support maximum contaminant levels once the agency could provide adequate microbial data. n307 Conflicts can also arise over what was not agreed to in the negotiated agreement - what might be termed expressio unius disputes. These disputes center on whether a negotiated agreement's silence on an issue reflects an agreement that the agency take no action. n308 In the reformulated gasoline case, the American Petroleum Institute charged that EPA's decision to impose second phase nitrogen oxide standards contravened the agreement because the agreement did not address second phase standards. n309 The EPA rejected API's administrative petition, concluding that the agreement's silence allowed the agency to proceed without retreating from the consensus. n310 [*1325] More notably, conflicts arise over the extent to which the agency has adhered to the stated terms of the negotiated agreement. For example, in the reformulated gasoline case, the petroleum industry felt betrayed by the EPA's subsequent decision to issue a separate rule favorable to the ethanol industry. n311 Similarly, in the Department of Education's student loan rulemaking, loan servicers charged that the Department breached commitments it made during the negotiated rulemaking. n312 More recently, the petroleum industry criticized the Department of Interior's Minerals Management Service when it decided to reopen the comment period over its natural gas royalties rulemaking. n313 Without an attempt at negotiated rulemaking, these conflicts over the commitment of the agency to a negotiated agreement could not arise. The third way negotiated rulemaking can add conflict is by heightening the sensitivity of the parties to adverse portions of a rule. Negotiated agreements raise expectations. When the agency does not follow the negotiated agreement, the existence of the agreement itself stirs up dissatisfaction. For example, consider a conventional rulemaking in which an agency fails to follow the input provided by an affected organization. In that case, the organization has mainly to complain about how adversely the rule affects its interests and how its comments were not accepted. If the agency were to enact the very same rule in contravention of a negotiated agreement, the organization would suffer both the adverse effects of the rule as well as the impression that it had been "sandbagged." n314 Such a reaction in this latter case would seem even more likely if the organization had compromised on other portions of the rule in order to secure gains on the portion subsequently undercut by the agency. Even if the underlying rule were the same in both cases, we would expect the organization to perceive its interests to be more severely aggrieved in the latter case. n315 Similarly, we might expect representatives of organiza- [*1326] tions excluded from a negotiation committee to react more acutely to an adverse portion of a rule if they knew the rule was developed in explicit consultation with other organizations having potentially divergent interests. In a more general sense, we can expect negotiated rulemaking to heighten conflict simply because of the intensity with which groups scrutinize the rules that are the subject of negotiations. One side benefit often attributed to negotiated rulemaking is that it facilitates learning, both by agency staff and interest group representatives. n316 The additional time and resources groups devote to discussing rules developed through negotiation provides greater awareness of the issues underlying the rule. n317 When groups invest these additional resources in negotiation, their representatives presumably also learn more about how aspects of the rule may adversely affect their group interests. Groups may also find that the more time they invest in a rulemaking proceeding, the less willing [*1327] they are to overlook imperfections in the rule. In these ways, the quest for consensus unintentionally contributes new sources of conflict to the regulatory process that can limit negotiated rulemaking's ability to reduce rulemaking time and litigation. environmental interests will derail negotiationsCase 1 David W., LLM Columbia, Sen. Res. Assoc @ Vanderbilt Cent. For Env. Manag. Studies, “The EPA’ s” Winter, 50 Emory L.J. 1 Given the disparate goals and interests present in multi-stakeholder driven negotiations involving environmental regulatory policy, it is not surprising that a unanimity requirement renders consensus elusive. Indeed, in a recent study of strategic bargaining behavior in consensus-based environmental regulatory reinvention programs, the authors conclude that stakeholders with “political veto power,” especially environmental interests inside and outside of the EPA, view regulatory reform proposals in “zero-sum” terms. 310 That is, these stakeholders tend to veto reforms proposed during negotiations that, although neutral in harm or benefit to their interests, would benefit their adversaries, principally industry. 311 In the language of economics, this is a “rational” exercise of veto power because it “maximizes” these stakeholders’ future ability to extract additional concessions from their adversaries. 3 industry will say noCoglianese 4 Cary, Associate Prof Kennedy School of Gov’t, Harvard, Environment, 7-1 Evaluating consensus building means taking outcomes seriously. Funston's comments reveal a mistake about outcomes frequently made in discussions about consensus and public policy. He discusses "success" and "successful outcome" as if they were defined by the attainment of an agreement. Yet agreement, even among disparate parties, is not a reliable proxy for successful public policy, for two important reasons. First, it is unrealistic to expect that industry will systematically agree to bear the costs of preventing environmental harm at anything close to the socially optimal level. If industry were willing to do this, then environmental policy (consensus-based or otherwise) would not be needed. Second, agreements reached by relying on ambiguous principles, reducing decisions to the lowest common denominator, or succumbing to groupthink are hardly indicia of good public policy. We are not surprised that some of the clearest energy and environmental policy failures in recent years--namely, federal standards for reformulated gasoline using MTBE and the State of California's bungled attempt at electricity restructuring--grew out of collaborative processes. not specifying parties involved takes out solvencyKerwin 83 Cornelius, Assistant Professor and Coordinator of Doctoral Programs, School of Government and Public Administration, The American University, 32 Am. U.L. Rev. 401 Consensual processes, however, may require expenditures that do not exist in more formal procedures, such as those associated with the use of mediators and multiple party negotiations. The latter category especially is an important determinant of both cost and feasibility. In the ubiquitous notice and comment rulemaking procedures, which are clearly dominated by the agency, written submissions are often the sole form of participation for most interested parties. Once comments are filed, the agency employs a number of techniques to review, screen, evaluate, and use the abundant information that has accumulated. n33 In [*413] contrast, when consensual processes are used, all participants expect more than merely an opportunity to comment; they expect to negotiate directly with the agency and other affected parties. Therefore, an important element of estimating the cost of a consensual process is a determination of how many parties will be involved and the convergence of interests and issues. permutation solvesAckerman 94 Susan Rose, Henry R. Luce Professor of Jurisprudence (Law and Political Science), Yale University, Duke Law Journal, April Of course, regulatory negotiation and incentive systems need not be mutually exclusive alternatives; they could be complements. For example, the regulations that are needed under a market scheme could be produced by consensual methods. However, the commitment to least cost solutions, which is a precondition for incentive-based systems, would rule out some of the political compromises that might arise under regulatory negotiation. The regulatory issues in the design of incentive schemes are usually technical and informational -- not the kind of bureaucratic problems that can be solved by negotiation. threats cannot be credibleGlauchant 95 Mattieu, Voluntary Agreements in Environmental Policy: A Bargaining Approach, Sixth EAERE conference on Environmental and Resources Economics, Online Economists are usually very present in the debate about the efficiency of various policy instruments, advocating in particular the advantages of economic instruments. But astonishingly, voluntary agreements have been the subject of very little economic analysis, until now 1 . The goal of this paper is to attempt to partly fill this gap. We will try to provide results about their theoretical nature and their allocative efficiency using analytical tools of bargaining theory. In the second section, we describe what VA are in reality. This leads to a formal characterisation which is then used throughout the paper. The third section develops a first best theoretical analysis. A major obstacle emerges: voluntary commitments of the firms cannot be achieved unless a threat is made by the government. But because of information asymmetry on pollution abatement costs, this threat cannot be credible given the fact that the government cannot check in what way, the implementation of the threat would affect social welfare. These difficulties lead us to use the famous second best framework initially proposed by Baumol (1972) which consists in carrying out separately the analysis of the setting of the social pollution reduction objective and the setting of the means of reaching it. The fourth and fifth sections develop a theoretical analysis along these lines. Its results are discussed in the last section. industry will say no – they can succeed without price supportRiedl 7 Bruce, Grover M. Hermann Fellow in Federal Budgetary Affairs in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation, Lawmakers Should Reject Another Irresponsible Supplemental Farm Bailout, Online The farm economy is currently enjoying a record boom. Overall, net farm income totaled $279 billion between 2003 and 2006, the highest four-year total ever.[4] The farm industry's current 11.9 percent debt-to-asset ratio is the lowest ever measured and does much to explain why farms fail at only one-sixth the rate of non-farm businesses.[5] Consequently, farm subsidies do not fill the role of keeping most farmers solvent as they did when they were created during the Great Depression. A Department of Agriculture (USDA) report states that "on average, farm households have higher incomes, greater wealth, and lower consumption expenditures than all U.S. households."[6] The average farm household earns $81,420 annually (29 percent above the national average) and has a net worth of $838,875 (eight times higher than the national average) and is located in a rural area, where the cost of living is low.[7] Despite the booming farm economy and high farmer incomes, Congress is actually accelerating the rise in farm subsidies. After averaging less than $14 billion per year during the 1990s, annual farm subsidies have topped $25 billion per year in the current decade, following the passage of the most expensive farm bill in American history in 2002. Hardworking Americans should not have to subsidize this thriving and profitable industry. 3. The Livestock Compensation Program Is a Proven Boondoggle. This disaster legislation includes funding for the Livestock Compensation Program, a disaster assistance program for livestock farmers. A recent Washington Post investigation discovered that the program encourages disaster declarations for counties without disasters and distributes aid to farmers without requiring proof of any disaster. When the Livestock Compensation program ran in 2002 and 2003 to compensate farmers for a drought, the majority of payments went to farmers in areas with moderate or no drought at all. Prodded by Congress, the USDA reportedly urged state and county officials to find anything that could be interpreted as a disaster, which would in turn make the county's farmers eligible for aid. In all, more than 2,000 of the nation's 3,141 counties were declared agriculture "disasters," including: [8] Whatcom County in Washington, for a distant earthquake that registered only a 3 magnitude on the local Richter scale, and caused no reported damage; All 254 counties in Texas, for "farm disasters" such as a storm two years earlier and the Space Shuttle Columbia explosion, prompting a local farmer to tell reporters, "The livestock program is a joke, we had no losses, I don't know what Congress is thinking sometimes"; and Fifty-three of Wisconsin's 72 counties, many for a small storm that had occurred two years earlier, prompting even local farmers to call the disaster aid an unjustified "waste of money." Nor did the individual farmers have to prove any actual losses. Washington simply sent them "disaster assistance" checks based on the number of livestock they owned. In short, this disaster aid has almost nothing to do with actual disasters. The Livestock Compensation Program has proven to be a classic subsidy masquerading as disaster aid. 4. Farm Subsidies Are Tilted to Large Agribusinesses. Farm subsidies are distributed in ways that make little sense. Nearly 90 percent of all subsidies go to growers of just five crops (wheat, cotton, corn, soybeans, and rice), while the vast majority of farmers specializing in fruits, vegetables, and all other crops survive in a free market without subsidies. Directory: file -> view view -> Western Europe after wwii view -> Author study: paul fleischman view -> Qpa1 7ela study Guide view -> Arctic Oil/Gas Neg view -> November 1970 Approximately 150,000-500,000 deaths Bhola Cyclone Bangladesh view -> Grade Level: 6 Unit of Study: Caribbean glce view -> Citation: Duffield, Katy view -> Table of Contents Lesson # view -> Chinese Wind Energy Disad Download 2.43 Mb. Share with your friends:
|